Courts get powers to gag media if they believe it could prejudice a trial

The Supreme Court on Tuesday refused to frame general guidelines on reporting of sub judice matters.

But it opened the door for an accused or aggrieved person to seek restraint on reporting of a pending criminal or civil case if there is 'real and substantial risk' of influencing the outcome of the case or there is a violation of the presumption of innocence of the accused until proved guilty.

In a judgment that could have a direct impact on media reporting on court cases, a five-judge Constitution bench presided over by Chief Justice S.H. Kapadia ruled that the Supreme Court and high courts would be empowered to prohibit 'statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case'.

The five-judge Constitution Bench of the Supreme Court refused to frame guidelines for reporting on court cases but asked the media not to
overstep its Lakshman Rekha

Elaborating on the issue, the court said 'such statements which could be prohibited temporarily would include statements in the media which would prejudice the right to a fair trial of a suspect or accused under Article 21 from the time when the criminal proceedings in a subordinate court are imminent or where suspect is arrested'.

Going a step further, the judgment written by Justice Kapadia on behalf of the Bench, went on to record that 'presumption of innocence' was a human right and a court could also intervene on its own if it finds 'infringement of such presumption by excessive prejudicial publicity by the newspapers'.

The bench, however, said such 'orders of postponement' should be for limited duration and should be passed only if the impacts outweigh 'the deleterious effects to the free expression of those affected by the prior restraint'.

It further clarified that such an order of postponement should be passed only when other alternative measures such as change of venue or postponement of trial are likely to prove ineffective.

Though courts always had the power to restrain reporting in exercise of its power to regulate proceedings, the SC has for the first time justified restraint on reporting of pending cases to strike a balance between the fundamental right to free speech enjoyed by the media and an accused's fundamental right to life.

It also follows that in appropriate case one right [say freedom of expression] may have to yield to the other right like right to a fair trial,' the court said.

The bench stressed that postponement orders can be used as a 'neutralising device' to balance the freedom of expression vis-à-vis the right to a fair trial, which is a facet of right to life under Article 21 of the Constitution.

'Such neutralising device would not be an unreasonable restriction and on the contrary, would fall within the proper constitutional framework,' the court said.

The court drew strength from the contempt law and said such a restraint order would also put the media on notice about possible contempt.

'The purpose of the contempt law is not only to punish. Its object is to preserve the sanctity of administration of justice and the integrity of the pending proceeding,' the court said.

'What constitutes an offending publication would depend on the decision of the court on case to case basis. Hence, guidelines on reporting cannot be framed across the board,' it added.

In the absence of general guidelines, the right propounded by the SC will be of help only to those who move court for enforcement. The bench quoted with approval an earlier judgment to stress that courts can also bar the media from reporting of a deposition of a witness.

It went on to state that restrictions could be imposed even if report was accurate: '…Sometimes even fair and accurate reporting of the trial could nonetheless give rise to the 'real and substantial risk of serious prejudice' to the connected trial.

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Apex court rules that courts can gag media if they believe it could prejudice a trial